UNITED STATES INTERNATIONAL TRADE COMMISSION
`WASHINGTON, D.C.
`
`Before Honorable Charles E. Bullock
`Administrative Law Judge
`
`In the Matter of
`CERTAIN NOISE CANCELLING
`HEADPHONES
`
`Investigation No. 337-TA-626
`
`RESPONDENTS’ RESPONSES TO BOSE CORPORATION’S OBJECTIONS TO
`RESPONDENTS’ COMBINED REBUTTAL TRIAL EXHIBITS
`
`Pursuant to Order No. 12, Respondents Phitek Systems Limited, Creative Labs, Inc.,
`
`Audio-Technica U.S., Inc., and Panasonic of North America (collectively “the Respondents”)
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`hereby submit their Responses to Bose Corporation’s (“Bose”) Objections to Respondents’
`
`Combined Rebuttal Exhibit List for trial. To avoid unnecessary repetition, Respondents’
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`responses are represented by the codes attached hereto as Exhibit A. The codes that appear in
`
`the table attached hereto as Exhibit B, under the “Response” column correspond to the responses
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`defined in Exhibit A. Furthermore, Respondents note that all of Bose’s objections are vague to
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`the extent that they do not provide a supporting explanation for each objection and are therefore
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`waived.
`
`Respondents reserve the right
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`to supplement or amend their responses to Bose’s
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`objections.
`
`Dated: November 10, 2008
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`5352605v.1 128214/00004
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`RESPECTFULLY SUBMITTED,
`
`/s/ William B. Nash
`William B. Nash
`Daniel Chapman
`Mark A. J. Fassold
`JACKSON WALKER LLP
`112 E. Pecan, Suite 2400
`San Antonio, Texas 78205
`1
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`
`
`

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`(210) 978-7700
`(210) 242-4620
`
`Alan Cope Johnson
`G. Brian Busey
`Cynthia Beverage
`MORRISON & FOERSTER, L.L.P.
`2000 Pennsylvania Avenue, N.W.
`Washington, D.C. 20006
`ATTORNEYS FOR PHITEK SYSTEMS LIMITED
`
`/s/ Daniel S. Ebenstien
`Daniel S. Ebenstien
`Abraham Kasdan
`Joseph M. Casino
`David A. Boag
`AMSTER, ROTHSTEIN & EBENSTEIN LLP
`90 Park Avenue
`New York, NY 10016
`(212) 336-8000
`
`Tom M. Schaumberg
`Jamie D. Underwood
`ADDUCI MASTRIANI & SCHAUMBERG
`LLP
`1200 Seventeenth Street, N.W., Fifth Floor
`Washington, D.C. 20036
`ATTORNEYS FOR PANASONIC CORPORATION
`OF NORTH AMERICA
`
`
`
`/s/ James P. White
`James P. White
`J. Aron Carnanhan
`HUSCH BLACKWELL SANDERS, LLP
`120 South Riverside Plaza, 22nd Floor
`Chicago, Illinois 60606
`(312) 665-1500
`ATTORNEYS FOR AUDIO-TECHNICA U.S.
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`5352605v.1 128214/00004
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`2
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`

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`CERTIFICATE OF SERVICE
`
`that a copy of RESPONDENTS’ RESPONSES TO BOSE
`I hereby certify
`CORPORATION’S OBJECTION TO RESPONDENTS’ COMBINED REBUTTAL EXHIBIT
`LIST has been served on November 10, 2008, as indicated, on the following:
`
`Marilyn R. Abbott
`Secretary
`U.S. International Trade Commission
`500 E. Street, S.W., Room 112A
`Washington, DC 20436
`
`The Honorable Charles E. Bullock
`Administrative Law Judge
`U.S. International Trade Commission
`500 E. Street, S.W., Room 317
`Washington, DC 20436
`
`Christopher Paulraj
`Office of Unfair Import Investigations
`U.S. International Trade Commission
`500 E. Street, S.W. Room 401-F
`Washington, DC 20436
`
`Via First Class Mail
`
`Via Hand Delivery
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`Via Overnight Delivery
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`Via Facsimile
`
`Via E-File
`
`Not Served
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`Via First Class Mail
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`Via Hand Delivery
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`Via Overnight Delivery
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`Via Facsimile
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`Via Electronic Mail
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`Not Served
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`Via First Class Mail
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`Via Hand Delivery
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`Via Overnight Delivery
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`Via Facsimile
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`Via Electronic Mail
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`Not Served
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`5352605v.1 128214/00004
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`3
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`

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`Andrew R. Kopsidas
`Ruffin B. Cordell
`Jeffrey R. Whieldon
`FISH & RICHARDSON P.C.
`1425 K Street, N.W.
`Washington, DC 20005
`
`Via First Class Mail
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`Via Hand Delivery
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`Via Overnight Delivery
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`Via Facsimile
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`Attorneys for Complainant Bose Corporation
`
`Via Electronic Mail
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`James P. White
`Gerald T. Shekleton
`J. Aron Carnahan
`HUSCH BLACKWELL SANDERS, LLP
`120 South Riverside Plaza, 22nd Floor
`Chicago, Illinois 60606
`
`Attorneys for Respondent Audio Technica,
`U.S. Inc.
`
`Arthur Wineburg
`Daniel E. Yonan
`Akin Gump Strauss Hauer & Feld, LLP
`1333 New Hampshire Avenue, N.W.
`Washington, DC 20036
`
`Attorneys for Respondent Audio Technica,
`U.S. Inc.
`
`Tom M. Schaumberg
`Jamie D. Underwood
`Adduci, Mastriani & Schaumberg, LLP
`1200 Seventeenth Floor, NW, Fifth Floor
`Washington, DC 20036
`
`Attorneys for Panasonic Corporation of North
`America
`
`Via First Class Mail
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`Via Hand Delivery
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`Via Overnight Delivery
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`Via Facsimile
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` Via Electronic Mail
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`Via First Class Mail
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`Via Hand Delivery
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`Via Overnight Delivery
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`Via Facsimile
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`Via Electronic Mail
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`Via First Class Mail
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`Via Hand Delivery
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`Via Overnight Delivery
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`Via Facsimile
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`Via Electronic Mail
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`5352605v.1 128214/00004
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`4
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`

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`Daniel Ebenstein
`Abraham Kasdan
`Joseph Casino
`Amster, Rothstein & Ebenstein LLP
`90 Park Avenue
`New York, NY 10016
`
`Attorneys for Panasonic Corporation of North
`America
`
`Alan Cope Johnston
`G. Brian Busey
`Cynthia Lopez Beverage
`MORRISON FOERSTER
`2000 Pennsylvania Ave., NW
`Washington, D.C. 20006-1888
`
`Attorneys for Phitek Systems Limited and
`Creative Labs, Inc.
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`Via First Class Mail
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`Via Hand Delivery
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`Via Overnight Delivery
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`Via Facsimile
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`Via Electronic Mail
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`Via First Class Mail
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`Via Hand Delivery
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`Via Overnight Delivery
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` Via Facsimile
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`Via Electronic Mail
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`/s/ William B. Nash
`William B. Nash
`
`_
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`5352605v.1 128214/00004
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`5
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`

`
`Exhibit
`
`Exhibit
`
`
`
`
`
`

`
`C
`
`D
`
`CODE
`A
`
`RESPONDENTS’ RESPONSE TO THE OBJECTION
`Bose’s objection should be overruled because the document appears to be regular on its face and
`Bose has failed to show by particularized evidence that the document is a forgery or is not what it
`purports to be. See Bullock Ground Rule 9.4.12. Moreover, the exhibit may be authenticated by
`witness testimony or other evidence and/or Bose produced the exhibit.
`Bose’s objections should be overruled because (a) the evidence can be presented in a short amount
`of time, and (b) the evidence has probative value that is not “substantially” outweighed by other
`considerations all of which Bose has categorically failed to articulate in making its objection. To the
`extent the Commission sustains said objection, Respondents’ request leaves to make an offer of
`proof and/or modify the offer once Bose articulates that portion of the offer that offends Federal
`Rule of Evidence 403.
`Bose’s objection should be overruled because (a) Bose is mistaken in that the document was
`disclosed during discovery, (b) the late disclose was substantially justified given the late discovery
`of the evidence by Respondents, and/or (c) the allegedly late disclosure, if any, was harmless given
`that the document was disclosed to Bose no later than June 30, 2008 (i.e., over five months before
`trial) and Bose has requested no additional timely discovery related to the document indicating a
`lack of prejudice.
`Bose’s objection should be overruled because Bose has failed to: (a) identify any missing
`foundational element, and/or (b) identify any evidence supporting the proposition that the witness
`lacks personal knowledge (to the contrary, the evidence demonstrates that the witness has personal
`knowledge about that which he testifies). Until Bose makes such showing, Respondents are unable
`to fully respond to Bose’s objection.
`GR10.5.6 Bose’s objection should be overruled because (a) the opinion is simply an elaboration of an opinion
`that was disclosed, (b) the opinion is responsive to new evidence introduced by Bose which could
`not have been anticipated, (c) the opinion has already been allowed pursuant to order entered by
`Judge Bullock, (d) the opinion is admissible testimony by an expert, see Fed. R. Evid. 702, (e) the
`testimony constitutes the admissible basis of opinion testimony by an expert, see Fed. R. Evid. 703
`(facts or data upon which an expert bases his opinion or inference may be presented to the fact-
`finder), (f) the testimony constitutes the admissible disclosure of facts or data underlying an expert
`opinion, see Fed. R. Evid. 705 (“The expert may testify in terms of opinion or inference and give
`reasons therefore without first testifying to underlying facts or data, unless the court requires
`otherwise), and/or (g) the testimony is a factual statement based on the witness’s personal
`knowledge and/or understanding. To the extent it is deemed an opinion, it is a permissible lay
`opinion. See Fed. R. Evid. 701.
`Bose’s objection should be overruled because (a) the opinion is simply an elaboration of an opinion
`that was disclosed, (b) the opinion is responsive to new evidence introduced by Bose which could
`not have been anticipated, (c) the opinion has already been allowed pursuant to order entered by
`Judge Bullock, (d) the opinion is admissible testimony by an expert, see Fed. R. Evid. 702, (e) the
`testimony constitutes the admissible basis of opinion testimony by an expert, see Fed. R. Evid. 703
`(facts or data upon which an expert bases his opinion or inference may be presented to the fact-
`finder), (f) the testimony constitutes the admissible disclosure of facts or data underlying an expert
`opinion, see Fed. R. Evid. 705 (“The expert may testify in terms of opinion or inference and give
`reasons therefore without first testifying to underlying facts or data, unless the court requires
`otherwise), and/or (g) the testimony is a factual statement based on the witness’s personal
`knowledge and/or understanding. To the extent it is deemed an opinion, it is a permissible lay
`opinion. See Fed. R. Evid. 701.
`
`F
`
`GR6
`
`5324200v.2 128214/00004
`
`

`
`(b)
`
`(c)
`
`(d)
`
`(e)
`
`(f)
`
`(g)
`
`(h)
`(i)
`
`(j)
`
`(k)
`(l)
`
`RESPONDENTS’ RESPONSE TO THE OBJECTION
`Bose’s objections should be overruled for any one of the following reasons:
`The hearsay objection is not applicable to Commission proceedings, see Commission Rule
`(a)
`210.37, which provides that, in a section 337 Investigation, evidence that is “relevant,
`material and reliable” is admissible.
`The evidence appears reliable and the Commission has held hearsay to be admissible “if it
`appears reliable” and if the nature of the information and the state of the particular record
`makes it useful, In re Certain Reclosable Plastic Bags, ITC Inv. 337-TA_22, Comm’n
`Memorandum Opinion at 13 (1977).
`The evidence is an in court statement given that the evidence has been incorporated by
`reference into a witness statement.
`The exhibit is not hearsay to the extent it is not being offered to prove the truth of the matter
`asserted. See Fed. R. Evid. 801(c).
`The exhibit is not hearsay to the extent it is not a statement. See Fed. R. Evid. 801(a); United
`States v. May, 622 F.2d 1000, 1007 (9th Cir. 1980), cert. denied, 449 U.S. 984 (1980)
`(“Photographs are admissible as substantive as well as illustrative evidence.”) Writings are
`not assertions if they simply provide “circumstantial evidence of origin.” See United States
`v. Snow, 517 F2d 411, 443-44 (9th Cir. 1974) (tape attached to a briefcase, bearing
`defendant’s name, was circumstantial evidence of ownership that did not implicate hearsay
`rule).
`Party admissions reflected by or contained in the exhibit are not hearsay. See Fed. R. Evid.
`801(d)(2).
`The public record or report exception to the hearsay rule is applicable. See Fed. R. Evid.
`803(8).
`The business record exception to the hearsay rule is applicable. See Fed. R. Evid. 803(6).
`The “former testimony” exception to the hearsay rule is applicable. See Fed. R. Evid.
`804(b)(1).
`The “recorded recollection” exception to the hearsay rule is applicable. See Fed. R. Evid.
`803(5).
`The learned treatise exception to the hearsay rule is applicable. See Fed. R. Evid. 803(18).
`The market report and/or commercial publication exception to the hearsay rule is applicable.
`See Fed. R. Evid. 803(17).
`The residual exception to the hearsay rule is applicable. See Fed. R. Evid. 807 (exception for
`statements having circumstantial guarantees of trustworthiness).
`Bose’s objection should be overruled because it has failed to demonstrate how the omitted portions
`of the document “ought in fairness to be considered.” In the alternative, Respondents will produce
`the complete document should they be ordered to do so.
`Bose’s objections should be overruled because Bose has proven that the document is indeed legible
`as demonstrated, for example, by Bose’s ability to deem the document “confusing, cumulative, [a]
`waste of time, [and/or] unduly prejudicial.” That is, Bose’s other objections to the document betray
`Bose’s “illegibility” objection. Should the Commission determine the document is illegible,
`Respondents will produce a more legible copy.
`
`CODE
`H
`
`I
`
`ILL
`
`(m)
`
`5324200v.2 128214/00004
`
`

`
`CODE
`L
`
`LC
`
`M
`
`MIL
`NII
`
`NT
`
`O
`
`P
`
`RESPONDENTS’ RESPONSE TO THE OBJECTION
`Bose’s objection should be overruled because (a) the suggestion is harmless compared to the waste
`of time inherent in developing the testimony without leading questions, (b) the question develops
`preliminary matters not in dispute, see Fed. R. Evid. 611(c), (c) the suggestion ensures that a
`witness’s testimony does not include inadmissible testimony or stays within the limits of a court’s
`ruling limiting the extent of the witness’s testimony, see Fed. R. Evid. 611 (a), (c) and/or (d) the
`question is not a leading question in that the question does not sufficiently suggestion the answer to
`the question.
`Bose’s objection should be overruled because (a) the testimony does not constitute a legal
`conclusion, and/or (b) testimony in the form of an opinion or inference otherwise admissible is not
`objectionable because it embraces an ultimate issue to be decided by the trier of fact. See Fed. R.
`Evid. 704(a).
`Bose’s objection should be overruled because (a) the testimony is not misleading, (b) the testimony
`does not mischaracterize prior testimony, and/or (c) Bose has failed to state how the testimony is
`misleading and/or how the testimony mischaracterizes prior testimony.
`See respective response to said motion in limine.
`Bose’s objection should be overruled because Order No. 17, has made the testimony part of the
`investigation.
`Bose’s objection should be overruled because (a) the opinion is simply an elaboration of an opinion
`that was disclosed, (b) the opinion is responsive to new evidence introduced by Bose which could
`not have been anticipated, (c) the opinion has already been allowed pursuant to order entered by
`Judge Bullock, (d) the opinion is admissible testimony by an expert, see Fed. R. Evid. 702, (e) the
`testimony constitutes the admissible basis of opinion testimony by an expert, see Fed. R. Evid. 703
`(facts or data upon which an expert bases his opinion or inference may be presented to the fact-
`finder), (f) the testimony constitutes the admissible disclosure of facts or data underlying an expert
`opinion, see Fed. R. Evid. 705 (“The expert may testify in terms of opinion or inference and give
`reasons therefore without first testifying to underlying facts or data, unless the court requires
`otherwise), and/or (g) the testimony is a factual statement based on the witness’s personal
`knowledge and/or understanding. To the extent it is deemed an opinion, it is a permissible lay
`opinion. See Fed. R. Evid. 701.
`Bose’s objection should be overruled because (a) the opinion is simply an elaboration of an opinion
`that was disclosed, (b) the opinion is responsive to new evidence introduced by Bose which could
`not have been anticipated, (c) the opinion has already been allowed pursuant to order entered by
`Judge Bullock, (d) the opinion is admissible testimony by an expert, see Fed. R. Evid. 702, (e) the
`testimony constitutes the admissible basis of opinion testimony by an expert, see Fed. R. Evid. 703
`(facts or data upon which an expert bases his opinion or inference may be presented to the fact-
`finder), (f) the testimony constitutes the admissible disclosure of facts or data underlying an expert
`opinion, see Fed. R. Evid. 705 (“The expert may testify in terms of opinion or inference and give
`reasons therefore without first testifying to underlying facts or data, unless the court requires
`otherwise), and/or (g) the testimony is a factual statement based on the witness’s personal
`knowledge and/or understanding. To the extent it is deemed an opinion, it is a permissible lay
`opinion. See Fed. R. Evid. 701.
`Bose’s “preservation” should be overruled given its failure to timely articulate its objection.
`
`5324200v.2 128214/00004
`
`

`
`CODE
`R
`
`S
`
`RESPONDENTS’ RESPONSE TO THE OBJECTION
`Bose’s objection should be overruled because (a) Bose has made numerous unfounded objections
`based on relevance and therefore Bose should be found to have waived said objection, and (b) the
`exhibit/testimony “has a tendency to make the existence of any fact that is of consequence to the
`determination of the action more probable or less probable than it would be without the evidence”
`and, therefore, is relevant. See Fed. R. Evid. 401. The evidence is relevant, material, and reliable
`and therefore must be admitted. See Commission Rule 210.37.
`Bose’s objection should be overruled because Bose has failed to state how the evidence constitutes
`speculation (e.g., Bose has failed to establish how the evidence lacks a foundational element that
`renders the evidence speculative) and because the evidence does not constitute speculation.
`
`5324200v.2 128214/00004
`
`

`
`Exhibit
`
`Exhibit
`
`
`
`
`
`

`
`Respondents’ Responses to Complainant Bose Corporation’s Objections to Respondents’
`Combined Rebuttal Trial Exhibit List
`
`Exhibit
`Number Description/Title
`International Standard, ISO 4869-3,
`Acoustics-Hearing Protectors-Part 3:
`Measurements of insertion loss of ear-
`muff type protectors using an acoustic
`test fixture
`Marshall Buck's Rebuttal Witness
`Statement
`Question/Response No. 5
`
`RX-900C
`
`RX-901
`
`Responses to Bose's Objections
`
`A, C, D, F, MIL, R
`
`C, GR6, GR10.5.6, MIL, O, R
`
`Question/Response No. 9
`
`C, GR6, GR10.5.6, M, MIL, O, R
`
`Question/Response No. 12
`
`C, GR6, GR10.5.6, M, MIL, O, R
`
`Question/Response No. 13
`
`C, GR6, GR10.5.6, M, MIL, O, R
`
`Question/Response No. 15
`
`C, GR6, GR10.5.6, M, MIL, O, R
`
`Question/Response No. 17
`Question/Response No. 22
`
`C, GR6, GR10.5.6, M, MIL, O, R
`C, MIL, O, R
`
`RX-902C
`
`Question/Response No. 24
`Question/Response No. 25
`Douglas Winker's Rebuttal Witness
`Statement
`Question/Response No. 2
`Question/Response No. 3
`
`C, GR6, GR10.5.6, M, MIL, O, R
`C, GR6, GR10.5.6, MIL, O, R
`
`M, O
`C, F, M, LC, O, S
`
`Question/Response No. 4
`Question/Response No. 5
`Question/Response No. 15
`Question/Response No. 16
`
`C, F, GR6, GR10.5.6, MIL, O, R, S
`M, GR6, GR10.5.6, MIL, O
`GR6, GR10.5.6, MIL, O
`GR6, GR10.5.6, MIL, O
`
`Question/Response No. 18
`
`C, F, GR6, GR10.5.6, MIL, O, R, S
`
`Question/Response No. 19
`
`C, F, GR6, GR10.5.6, MIL, O, R, S
`
`Question/Response No. 20
`
`C, F, GR6, GR10.5.6, MIL, O, R, S
`
`Question/Response No. 21
`
`C, F, GR6, GR10.5.6, MIL, O, R, S
`
`Question/Response No. 22/23 [sic]
`
`C, F, GR6, GR10.5.6, MIL, O, R, S
`
`Question/Response No. 24
`
`C, F, GR6, GR10.5.6, MIL, O, R, S
`
`Question/Response No. 25
`
`C, F, GR6, GR10.5.6, MIL, O, R, S
`
`Question/Response No. 26
`Question/Response No. 27
`
`C, F, GR6, GR10.5.6, MIL, O, R, S
`M, S
`
`Question/Response No. 29
`Question/Response No. 30
`Question/Response No. 31
`Question/Response No. 33
`Question/Response No. 34
`Question/Response No. 35
`Question/Response No. 36
`
`C, F, GR6, GR10.5.6, MIL, O, R, S
`GR6, GR10.5.6, MIL, O
`GR6, GR10.5.6, MIL, O
`C, MIL, O, R, S
`C, MIL, O, R, S
`C, MIL, O, R, S
`GR6, GR10.5.6, MIL, O
`
`

`
`Respondents’ Responses to Complainant Bose Corporation’s Objections to Respondents’
`Combined Rebuttal Trial Exhibit List
`
`Loudspeaker and Headphone
`Handbook, Third Edition, John
`Borwick, pg. 587-589
`Bose QC-1
`
`RX-903
`RPX - 43
`
`A, D, I, L, R
`A, C, D, R, P
`
`5352671v.1 128214/00004